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Last updated: July 25, 2023
NFTEarth is an NFT developer platform developed and made available by NFTEarth (“NFTEarth,” “we,” “our,” or “us”). This platform consists of multiple components that can be accessed through our website located at https://nftearth.exchange/, including the NFTEarth API (a hosted Application Programming Interface for building NFT applications), the NFTEarth Toolset and the NFTEarth Protocol (an open-source NFT liquidity aggregation protocol). Details on the components of the NFTEarth Platform can be found at https://docs.nftearth.exchange. The NFTEarth Protocol is comprised of open-source software, which is publicly available and located at https://github.com/NFTEarth
THIS AGREEMENT CONTAINS A BINDING INDIVIDUAL ARBITRATION AGREEMENT AND CLASS ACTION WAIVER IN SECTION 14. THIS AFFECTS YOUR RIGHTS WITH RESPECT TO ANY “DISPUTE” BETWEEN YOU AND NFTEarth, INC. AND MAY REQUIRE YOU TO RESOLVE DISPUTES IN BINDING, INDIVIDUAL ARBITRATION, AND NOT IN COURT. PLEASE READ THIS ENTIRE AGREEMENT, INCLUDING THAT PROVISION, CAREFULLY.
- 1.1 You must be at least the age of majority in your jurisdiction to access or use the Services. By accessing or using the Services, you represent that you are at least the age of majority (e.g., 18 years of age) and have the full right, power, and authority to enter and comply with these Terms. If you access or use the Services on behalf of a legal entity, (a) all references to “you” throughout these Terms will include that entity, (b) you represent that you are authorized to accept these Terms on that entity’s behalf, and (c) in the event you or the entity violates these Terms, the entity agrees to be responsible to us.
1.2 You further represent that you are not (a) the subject of economic or trade sanctions administered or enforced by any governmental authority or otherwise designated on any list of prohibited or restricted parties (including but not limited to the list maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury) or (b) a citizen, resident, or organized in a jurisdiction or territory that is the subject of comprehensive country-wide, territory-wide, or regional economic sanctions by the United States.
- Intellectual Property Ownership.
- 2.1 You acknowledge and agree that we own all legal right, title and interest in the website located at https://nftearth.exchange/ (the “NFTEarth Website”) and its contents, including but not limited to software, text, images, all trademarks, service marks, and trade names (“NFTEarth Materials”). You acknowledge that NFTEarth Materials are protected by copyright, trade dress, patent, and trademark laws, international conventions, other relevant intellectual property and proprietary rights, and applicable laws.
2.2 Subject to your compliance with these Terms, we provide you a limited, personal, non-exclusive, nontransferable, non-assignable, fully revocable license to use the NFTEarth Website for your individual use. This license is effective until terminated. We may terminate or suspend any or all portions or features of the NFTEarth Website at any time and for any reason or for no reason with no liability to you. This license does not give you any ownership rights in the NFTEarth Materials.
2.3 While the NFTEarth Materials are proprietary, the NFTEarth Protocol is comprised of open-source software running on a public blockchain.
- Prohibited Conduct and Content.
- 4.1 You acknowledge and agree that any data provided to you through our services is for your internal business use only, and may not be directly resold or sublicensed to third parties. You may incorporate the data into your own product or service for distribution or use by your own end-users, provided that such distribution or use is in accordance with these terms of service and any applicable laws and regulations. You may not offer the data as a standalone product or service, or permit third parties to access or use the data outside of your own product or service without our prior written consent.
4.2 You agree not to engage in any of the following conduct (each a “Prohibited Activity”) with respect to the NFTEarth Website or the Services:
(i) Any activity that seeks to interfere with or compromise the integrity, security, or proper functioning of any computer, server, network, personal device, or other information technology system, including (but not limited to) the deployment of viruses and denial of service attacks;
(ii) Any activity that seeks circumvent a usage or capacity limit of the Services;
(iii) Any activity to defraud any person or entity, including but not limited to providing any false, inaccurate, or misleading information in order to unlawfully obtain the property of another;
(iv) Any activity that violates any applicable law, rule, or regulation concerning the trading of securities, derivatives, or commodities; and
(v) Any activity to violate any other applicable law, contract, intellectual property right or other third-party right or commit a tort.
4.3 If you engage in any of the Prohibited Activities, we may, at our sole and absolute discretion, without notice or liability to you, and without limiting any of our other rights or remedies at law or in equity, immediately suspend or terminate your access to the NFTEarth Website or the Services.
- 5.1 We may, at any time and at its sole discretion, suspend, terminate, deactivate, and delete your access to or any part of the NFTEarth Website or the Services with or without notice to you for any reason or for no reason at all, including without limitation if: (i) you breach any provision of these Terms; (ii) you infringe any intellectual property rights; or (iii) you in engage in any Prohibited Activity.
5.2 The following Sections of these Terms will survive termination of this agreement or discontinuation of your access to any part of the Services: Section 8 (Disclaimer and No Warranties), Section 9 (Indemnification), Section 10 (Limitation of Liability), Section 11 (Release), Section 14 (Dispute Resolution and Binding Arbitration), and Section 17 (Feedback).
- Non-Custodial and No Fiduciary Duties
- 6.1 Any Services offered by us are non-custodial, meaning you are solely responsible for the custody of the cryptographic private keys to the digital asset wallets you hold. These Terms are not intended to, and do not, create or impose any fiduciary duties on us. To the fullest extent permitted by law, you acknowledge and agree that we owe no fiduciary duties or liabilities to you or any other party, and that to the extent any such duties or liabilities may exist at law or in equity, those duties and liabilities are hereby irrevocably disclaimed, waived, and eliminated.
- Non-Solicitation and No Professional Advice
- 7.1 You agree and understand that transactions you submit through the NFTEarth Website or through the NFTEarth Protocol are considered unsolicited, which means that you have not received any investment advice from us in connection with any transactions.
7.2 You agree and understand that all information provided by the NFTEarth Website is for informational purposes only and should not be construed as legal, financial, or tax advice. You should not take, or refrain from taking, any action based on any information contained in the NFTEarth Website.
- Disclaimers and No Warranties.
- 8.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR ACCESS TO AND USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THAT ACCESS TO THE SERVICES IS PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE MAKE NO EXPRESS WARRANTIES AND HEREBY DISCLAIM ALL IMPLIED WARRANTIES REGARDING ANY PART OF THE SERVICES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, CORRECTNESS, ACCURACY, OR RELIABILITY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT REPRESENT OR WARRANT THAT ACCESS TO THE SERVICES WILL BE CONTINUOUS, UNINTERRUPTED, TIMELY, OR SECURE; THAT THE INFORMATION CONTAINED IN THE NFTEarth WEBSITE WILL BE ACCURATE, RELIABLE, COMPLETE, OR CURRENT; OR THAT THE SERVICES WILL BE FREE FROM ERRORS, DEFECTS, VIRUSES, OR OTHER HARMFUL ELEMENTS.
8.2 YOU ACCEPT THE INHERENT SECURITY RISKS OF PROVIDING INFORMATION AND DEALING ONLINE OVER THE INTERNET, YOU AND AGREE THAT WE HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BREACH OF SECURITY.
8.3 WE WILL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOSSES YOU INCUR AS THE RESULT OF YOUR USE OF ANY BLOCKCHAIN NETWORK OR ANY DIGITAL ASSET WALLET OR OTHER ELECTRONIC WALLET, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (i) USER ERROR, SUCH AS FORGOTTEN PASSWORDS OR INCORRECTLY CONSTRUED SMART CONTRACTS OR OTHER TRANSACTIONS; (ii) SERVER FAILURE OR DATA LOSS; (iii) CORRUPTED WALLET FILES; OR (iv) UNAUTHORIZED ACCESS OR ACTIVITIES BY THIRD PARTIES, INCLUDING BUT NOT LIMITED TO THE USE OF VIRUSES, PHISHING, BRUTEFORCING OR OTHER MEANS OF ATTACK AGAINST THE PLATFORM, BLOCKCHAIN NETWORK, OR ANY DIGITAL ASSET WALLET OR OTHER ELECTRONIC WALLET.
8.4 WE ARE NOT RESPONSIBLE FOR LOSSES DUE TO BLOCKCHAINS OR ANY OTHER FEATURES OF ANY BLOCKCHAIN NETWORK OR ANY DIGITAL ASSET WALLET OR OTHER ELECTRONIC WALLET, INCLUDING BUT NOT LIMITED TO LATE REPORT BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES WITH THE BLOCKCHAIN SUPPORTING THE BLOCKCHAIN NETWORK, INCLUDING FORKS, TECHNICAL NODE ISSUES, OR ANY OTHER ISSUES HAVING FUND LOSSES AS A RESULT.
- 9.1 To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless NFTEarth and our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners and employees (individually and collectively, the “NFTEarth Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the Services (b) your violation of these Terms; (c) your violation, misappropriation, or infringement of any rights of another (including intellectual property rights or privacy rights); or (d) your conduct in connection with the Services. You agree to promptly notify NFTEarth Parties of any third-party Claims, cooperate with NFTEarth Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including attorneys’ fees). You also agree that NFTEarth Parties will have control of the defense or settlement, at NFTEarth’ sole option, of any third-party Claims.
- Limitation of Liability.
- 10.1 To the fullest extent permitted by applicable law, NFTEarth and the other NFTEarth Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits, even if NFTEarth or the other NFTEarth Parties have been advised of the possibility of such damages.
10.1 The total liability of NFTEarth and the other NFTEarth Parties for any claim arising out of or relating to these Terms, regardless of the form of the action, is limited to the greater of $100 or the amount paid by you to use the Services.
10.2 The limitations set forth in this Section 10 will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of NFTEarth or the other NFTEarth Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
- 11.1 To the fullest extent permitted by applicable law, you release NFTEarth and the other NFTEarth Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
- Changes to these Terms.
- 12.1 We may update, amend, alter, or modify these Terms in the future. You agree that NFTEarth may make changes to these Terms at any time and for any reason at its sole discretion. If we make material changes to these Terms, we will notify you and give you an opportunity to review the new Terms that will supersede and replace these Terms. Your continued access or use of the Services after notice of changes to these Terms will mean that you accept any and all of such changes. If you do not agree to the amended Terms, you must stop using the Services.
- Changes to the Services.
- 13.1 We may update, amend, alter, change, or stop the Services, from time to time without prior notice to you.
13.2 We doe not have any maintenance, update, or support obligations with respect to the Services. You agree that our updates to the Services may change the requirements necessary to use the Services, and you agree that in such an event you are responsible for any necessary actions, including but not limited to updating software or hardware to access and use the Services.
13.3 We are not responsible for any loss or harm related to your inability to access or use the Services.
- Dispute Resolution and Binding Arbitration.
- 14.1 Please read the following section carefully because it requires you to arbitrate certain disputes and claims with NFTEarth and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration provision. In addition, arbitration precludes you from suing in court or having a jury trial.
14.2 No Representative Actions. You agree that any dispute arising out of or related to these Terms or our Services is personal to you and NFTEarth and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.
14.3 Arbitration of Disputes. Except for disputes in which you or NFTEarth seeks injunctive or other equitable relief for the alleged infringement or misappropriation of intellectual property, you and NFTEarth waive your rights to a jury trial and to have any other dispute arising out of or related to these Terms, including claims related to privacy and data security, (collectively, “Disputes”) resolved in court. Instead, for any Dispute that you have against NFTEarth you agree to first contact NFTEarth and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to NFTEarth by email at [email protected]. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the Dispute; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and NFTEarth cannot reach an agreement to resolve the Dispute within thirty (30) days after such Notice is received, then either party may submit the Dispute to confidential, binding arbitration. The arbitration shall be conducted in the State of New York by a single arbitrator pursuant to the Rules of the American Arbitration Association (“AAA”). You and NFTEarth agree that these Terms affect interstate commerce and that the enforceability of this Section 16 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the AAA Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. The arbitration will allow for the discovery or exchange of non-privileged information relevant to the Dispute. The arbitrator, NFTEarth, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including information gathered, prepared and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
14.4 You and NFTEarth agree that for any arbitration you initiate, you will pay the filing fee up to a maximum of $250, and NFTEarth will pay the remaining fees and costs. For any arbitration initiated by NFTEarth, NFTEarth will pay all fees and costs. You and NFTEarth agree that the state or federal courts of the State of New York shall have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
14.5 Any dispute must be filed within one year after the relevant claim arose; otherwise, the Dispute is permanently barred, which means that you and NFTEarth will not have the right to assert the claim.
14.6 You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 14 by contacting NFTEarth at [email protected]. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 15.
14.7 If any portion of this Section 14 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 14 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 14; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 14 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 14 will be enforceable.
- Governing Law and Venue.
- 15.1 Any dispute arising from these Terms will be governed by and construed and enforced in accordance with the laws of the State of Delaware, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration will be resolved in the courts of the State of New York or federal courts located in the State of New York.
- 16.1 If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
- 17.1 If you choose to provide input, ideas, suggestions, or feedback (“Feedback”) to us concerning the Services, then you hereby grant us an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Services and create other products and services.
- 18.1 These Terms constitute the entire agreement between you and NFTEarth relating to the subject matter herein and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written.
18.2 Our failure to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision.
18.3 The section titles in these Terms are for convenience only and have no legal or contractual effect.
18.4 Any provisions in these Terms that by their nature should survive termination of your access to the Services will survive (including, but not limited to, all limitations on liability, releases, and indemnification obligations).
18.5 You may not assign or transfer these Terms or your rights and obligations under these Terms without our prior written consent. We may freely assign these Terms.
18.6 These Terms do not create any joint venture, partnership, employment, or agency relationship between you and NFTEarth.
18.7 The provisions of these Terms which by their nature should survive the termination of these Terms shall survive such termination.
18.8 Notices to you may be made via email or regular mail or, if applicable, by posting on the NFTEarth Website or the Services.
Date of last revision: July 25, 2023